Grand Divisions

Tennessee Equality Project seeks to advance and protect the civil rights of our State’s gay, lesbian, bisexual and transgender persons and their families in each Grand Division.

Wednesday, August 4, 2010

Prop 8 Fails Because "Conjecture, speculation and fears are not enough"

Okay, everyone. This will not be a complete analysis of the trial court's decision in the Prop 8 case, just a few memorable and noteworthy observations.

So we won, what does that mean? Well, quite a bit actually. Yes, the proponents of Prop 8 will appeal. We knew that would happen. But today's decision was a huge win for Due Process and Equal Protection under the Fourteenth Amendment. (You know, that one that conservatives want repealed in the immigration debate) The judge found for us because there is no rational basis for this law. There is no threat to heterosexual marriage from same sex marriages. There is no rational state purpose that is advanced by denying same sex marriage. The only argument against the state of California issuing same sex couples a marriage license is that there are people who either have an animus towards homosexuals or base their position on a religious belief. Neither of these reasons is enough to justify treating one class of citizens differently when it comes to the civil institution of marriage.

It is incredibly important that this was a full trial, with evidence presented on both sides, and the judge decides the issues of fact.

Factual determinations at trial are not reviewed on appeal. What does that mean? Well, the Proponents' attorney actually told the judge that they didn't have to provide any evidence (note to self: NEVER SAY THAT TO A JUDGE WHEN I START PRACTICING). Interestingly, what little testimony they did produce from their "experts" actually supported the Plaintiff's case. The judge also pointedly referred to the witnesses that the Proponents withdrew prior to trial. See, their excuse for not testifying was that the trial was going to be televised and they "feared" some sort of 'queer retribution'. He points out that the Supreme Court kept the cameras out, so the Proponents had plenty of time to recall those witnesses...but didn't bother to do so. One of their witnesses cited "the Internet" as a source for his information....'cause we all know everything on the Internet is true.

The entire campaign for Proposition 8 was backed, orchestrated and financed by Protect Marriage. Protect Marriage was funded via the Church of Latter Day Saints, the Catholic Church, and various evangelical Christian denominations.

Why is this an important finding? As the judge explains, while the state may authorize a clergy member to officiate a marriage ceremony, marriage is a recognized civil matter subject to civil law. Religious authorities do not get to determine who may enter into or leave a marriage; the state determines by law who is eligible to marry. Religious belief is not equivalent to a state interest, nor should it be a basis for discriminating under the law. Just because a large majority of people hold a religious belief, that is not a justification for imposing a discriminatory law against a class of citizens who do not share that belief.

The institution we call "marriage" has changed many times over the course of American history, so the definition of "marriage" is not carved in stone.

As the judge points out, when California became a state, women were considered the subordinate of their husbands, and lost their individual identity upon marriage. Interracial marriage was illegal. Divorce laws have changed. Marriage is not dependant on an ability to procreate, either. Adopted children, step children, and children produced through surrogacy or in vitro fertilization thrive just as well as their peers born to fertile heterosexual couples. Oh, and old people are still allowed to get married without being required to be fertile. This is important because it shows that so-called 'traditional marriage' is not related to a state interest in channeling "irresponsible procreation" (which apparently is just a horrible problem among heterosexuals), as the Proponents argued at trial.

I could go on and on and on. Suffice it say that not one single argument put forth by the Prop 8 folks was found to have merit, not one of their witnesses was found credible, much less any foundation in evidence or logic or rational argument. It boils down to this: You don't have to like us, you don't have to approve of us, you are free to believe we are all going to hell in a hand basket, but you DO NOT get to deny us fundamental rights under the law.

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This blog explores the divisions both grand and not so grand that confront Tennessee politics today. Grand Divisions is produced by members of the Tennessee Equality Project, TEP PAC, and the TEP Foundation. Contributors address a variety of issues at the federal, state, and local level, particularly as they shape the fight for equality in Tennessee. The opinions expressed on this blog do not necessarily represent the views or positions of TEP.